Averono v Mbuzi[2005] QSC 61

SUPREME COURT OF QUEENSLAND

[1] MULLINS J:  This proceeding was commenced by the applicants who own Lot 31 on SP112285 (“Lot 31”) filing an originating application on 13 December 2004 seeking injunctions against the respondents who own the adjoining parcel Lot 32 on SP112285 (“Lot 32”) in respect of activities that would interfere with the applicants’ rights granted pursuant to registered Easements Nos 702880330 (“Easement 330”) and 702880356 (“Easement 356”).  The respondents made a cross application seeking extinguishment of Easement 356 pursuant to s 181 of the Property Law Act 1974.  Those applications were heard by Muir J who published reasons and made orders on 21 January 2005:  Averono & Anor v Mbuzi & Anor [2005] QSC 6 (“the reasons”). 

[2] Muir J dismissed the application for extinguishment of Easement 356, but did not grant the injunctive relief sought by the applicants on the basis that the evidence did not disclose that the respondents were likely to act unlawfully.  The injunctions sought by the applicants were set out in paragraphs 1, 2 and 3 of the originating application in the following terms:

“1.An injunction restraining the respondents whether by themselves, their servants or agents or contractors from interfering with the applicants’ use of or rights granted pursuant to registered Easements Nos 702880330 and

702880356.

2.An injunction restraining the respondents whether by themselves, their servants or agents or contractors from removing the bitumen on that portion of registered Easement No 702880330 located on Lot 32 SP 112285, County of Stanley, Parish of Warner, Title Reference 50234937.

3.An injunction restraining the respondents whether by themselves, their servants or agents or contractors from erecting a fence on registered Easement No 702880330 at the boundary of Lots 31 and 32 on SP 112285, County of Stanley, Parish of Warner, Title References 50234937 and 50234938.”

[3] Lots 31 and 32 are adjoining battle-axe shape blocks.  Each lot has a long narrow driveway between that part of the lot on which the residence is located and the road.  The narrow strip of land that is part of Lot 32 which is subject to Easement 356 is described as Easement E.  It adjoins the narrow strip of land which is part of Lot 31 and described as Easement D and which is subject to Easement 330.  A more detailed description of the easements is set out in paragraphs [2] to [4] of the reasons.       

[4] On the morning of 21 January 2005 contractors engaged by the respondents commenced to dig post holes along the middle of the driveway.  On 26 January 2005 the male respondent inserted timber slats and tree poles and one length of chrome piping into the post holes.  Those makeshift fence posts were removed by 4 February 2005.    

[5] On 11 February 2005 the applicants filed an amended originating application and sought interlocutory injunctions on 15 February 2005.  The respondents did not appear for the hearing on 15 February 2005.  On that day Muir J ordered that, until the determination of the relief sought in the amended originating application or earlier order, the respondents do not carry out or cause to be carried out any works on the land within Easements 330 and 356, further prevent, impede or restrict the ability of vehicles of any description to pass and re-pass over the said land and further carry out or cause to be carried out any further works interfering with the drainage of the said land.  The amended originating application was adjourned for hearing on 2 March 2005.  The additional relief sought by the applicants in the amended originating application was set out in paragraph 2A as follows:

“An order requiring the respondents to restore the surface on Easements No 702880330 and 702880356 to a condition which allows users to pass and repass with safety and so as to allow for drainage as existed prior to the respondents causing the surface on the easements to be altered.”

[6] On 1 March 2005 the respondents filed a cross application seeking orders for the removal of the wire fence and mailbox placed by the applicants on Easement 330 and compensation for the diminution of the respondents’ rights caused by the placement of that fence and mailbox on Easement 330. 

[7] Because the respondents had originally requested the applicants to agree to an adjournment of the hearing due to take place on 2 March 2005, the applicants proceeded on the basis that the hearing would be adjourned, but did not convey to the respondents their agreement to that adjournment until 1 March 2005.  Although the respondents then wished to proceed on 2 March 2005, I decided that it was appropriate to give the matter a full hearing and adjourned both the amended originating application and the respondents’ application filed on 1 March 2005 for hearing on 23 March 2005 in the civil sittings of the Court. 

[8] On 16 March 2005 the respondent filed an application which was also returnable on 23 March 2005 seeking orders in relation to the orders made by Muir J on 15 February 2005.  I indicated during the hearing on 23 March 2005 that I did not have jurisdiction to make the orders sought by the respondents which, in effect, were seeking to have those orders made by Muir J set aside.  By that application the respondents also sought to object to the reliance by the applicants on the affidavits of Messrs Lewis, Morgan and Collins at the hearing on 23 March 2005.  I allowed the applicants to rely on those affidavits.  The other relief which was sought by the applicants in the application filed on 16 March 2005 which was pursued at the hearing on 23 March 2005 was:

“2.That the applicants be ordered to pay compensation for causing harassment and filling of holes related to the respondents’ driveway concreting work on 17 January 2005.  

3.That the applicants be ordered to pay damages for the inconvenience, delay, and waste of materials, related to the concreting of the respondents’ driveway.”

Evidence

[9] At the hearing on 23 March 2005, the male applicant, Ms Cronan, Mr Colwell, Mr Lewis, Mr Morgan and Mr Collins were cross-examined by the male respondent.  The male respondent and Mr Allen were cross-examined at the hearing by Mr Taylor of counsel on behalf of the applicants. 

[10] It is apparent that the dispute between the parties over the easements reflects a breakdown in their relationship as neighbours.  The frustration of the male applicant and the male respondent with each other was evident throughout the hearing on 23 March 2005.  It was also clear that each was affected by what he considered was unneighbourly conduct on the part of the other.  As I indicated throughout the hearing, I can determine rights arising from the existence of the easements.  I cannot provide solutions for the conflicts that clearly exist between the parties otherwise.  After evaluating the evidence and allowing for the high feeling which existed on both sides, I accept most of the evidence given by each of the male applicant and the male respondent.  I identify in these reasons the specific evidence which I reject.    

Findings

[11] Muir J made the findings set out in paragraph [5] to [7] of the reasons about the physical condition of the driveway prior to 17 December 2004.  The photographs of the driveway prior to the removal of bitumen from that part of the driveway on Easement E show that there was in existence a driveway with a bitumen surface that was partly on each of Easements D and E.  The parties were therefore able to exercise their respective rights over Easements D and E by using this driveway that straddled the common boundary between Easements D and E.

[12] In the latter part of 2004 the respondents contracted with Mr Lee Allen to construct a concrete driveway on Easement E.  Mr Allen engaged an earthworks subcontractor who had an operator on site with an excavator in December 2004.  It was the excavator operator who removed the bitumen from that part of the driveway on Easement E, in accordance with the respondents’ instructions.  Mr Allen had agreed with the respondents to construct a concrete driveway in the middle of Easement E into which pavers were to be set on Easement E leaving 1 metre on either side of the driveway.  After the removal of the bitumen, the surface of that part of the driveway on Easement E has been the pre-existing road base that remained.  I find that the respondents removed the bitumen on Easement E as part of the preparatory work for constructing a concrete driveway on Easement E.

[13] One of the complaints of the applicants that was pursued at the hearing on 23 March 2005 (that had also been raised in the evidence before Muir J at the hearing on 20 January 2005) was that the excavator that was present to undertake work for the respondents in December 2004 dug out part of the driveway on Easement D.  Two of the photographs exhibited to the male applicant’s affidavit filed on 22 December 2004 showed the excavator on the applicant’s side of the driveway.  The male applicant did not depose to any conversations which he had with contractors engaged for the respondents on that day. 

[14] The respondents obtained an affidavit from Mr Allen for the purpose of the hearing on 23 March 2005.  Although Mr Allen was cross-examined by telephone, he was questioned for sufficient time for me to be satisfied that he was a reliable and credible witness.  Mr Allen stated that he had a conversation at some stage in December 2004 with the male applicant in which the male applicant expressed his concern (as was the case) that he wanted to ensure that a minibus could still access the driveway.  The applicants have an invalid son who is transported by a bus operated by a disability and therapy support service that provides services for the applicants’ son.  Mr Allen stated that he was prepared to have the excavator scrape Easement D adjacent to the driveway to “widen” the applicant’s driveway for no charge while the machine was there in order “to keep the peace”.  Mr Allen confirmed that the operator of the excavator then proceeded to undertake that task.  I am therefore not satisfied on the state of the evidence that the applicants can show that the respondents were responsible for that scraping work undertaken by the excavator in December 2004 on Easement D.     

[15] The photograph which is Ex MAV1 to the affidavit of the male applicant filed on 11 February 2005 shows the post hole digger that was used by Northside Mini Excavators engaged by the respondents to dig post holes along the middle of the driveway on 21 January 2005.  Twenty-three holes were dug on that day.  The photograph which is Ex MAV2 to the affidavit of the male applicant filed on 11 February 2005 shows some of the timber slats and tree poles in situ in the holes.  The male respondent gave evidence to the effect and set out in his affidavit filed on 16 March 2005 that those holes were provided to block off the area during the time of pouring the concrete and that the holes were “legitimate and necessary for the work of construction of concrete driveway with concrete pavers”.  I have no hesitation in rejecting that evidence of the male respondent.  The photographs of the holes show their size.  The male applicant estimated that each hole was approximately a metre deep.  Mr Allen did not require post holes to be dug in order to erect a barricade to protect any concreting work.  I find that those holes were dug in preparation for erecting a fence on the common boundary between Easements D and E and substantially interfered with the applicants exercising their rights of access over the driveway.  The male respondent has attempted to rationalise his conduct in causing these holes to be dug by putting forward the excuse of erecting a barrier to facilitate the construction of a concrete driveway.         

[16] When the matter was before the court on 2 March 2005 the male respondent stated in the course of making submissions that he was not proposing to build a fence in contravention of the easement, although he did appear to qualify that to some extent when he said “There is no law that would say if I put a fence it will be in contravention of the easement.”  At the hearing on 23 March 2005, the male respondent was unequivocal in his acknowledgement that whilst the respondents’ land is burdened by Easement 356, he cannot build a fence which divides the driveway that straddles the common boundary between Easements D and E.  It was also clear from the evidence that after the holes that had been dug on 21 January 2005 were filled in by contractors engaged by the applicants on 17 February 2005 with crusher dust and gravel, the driveway has been able to be traversed without undue difficulty.  There is therefore no warrant for making any of the orders sought in paragraphs 1, 2 and 3 of the amended originating application and the interlocutory injunction ordered by Muir J on 15 February 2005 should be discharged. 

Reinstatement of bitumen to Easement E

[17] The new relief that was sought by the amendment to the originating application was a mandatory injunction requiring the respondents to restore the surface on Easements D and E to a condition which would allow users to pass and repass with safety and to allow for drainage as existed prior to the respondents causing the surface on the easements to be altered.  To the extent that the relief was addressing the change to the edge of the driveway on Easement D caused by the excavator, my finding that the applicants have failed to show that the respondents caused that scraping means that no relief can be ordered in respect of that part of the driveway.

[18] It emerged during the hearing on 23 March 2005 that the applicants want the bitumen restored.  This raises the issue of the rights of the respondents to carry out works on Easement E, having regard to the rights of access given to the applicants under Easement 356.  All that Easement 356 deals with is the extent of the right of way and that the grantee is responsible for the maintenance of the easement.  There are no covenants between the parties as to the construction of the driveway or any attempt to regulate what changes the grantor can make to the existing driveway. 

[19] In the context of Easement 356, the respondents are the owners of Easement E, subject to the right of way granted to the applicants.  The grant of a right of way involves such access as shall be reasonable:  Saggers v Brown (1981) 2 BPR 9329, 9331.  In determining whether the removal of the bitumen on Easement E is actionable, the test that has to be applied is whether what the respondents have done amounts to a substantial interference with the enjoyment of the right of way:  Pettey v Parsons [1914] 2 Ch 653, 652, Powell v Langdon (1944) 45 SR (NSW) 136, 139 and Saggers v Brown (1981) 2 BPR 9329, 9331.  See also MacDonald, et al Real Property Law in Queensland (2nd ed) at p 675.

[20] On the evidence, although the applicants can show that the driveway is currently not as easy to use, as it was when the bitumen surface existed on that part of the driveway on Easement E, it remains traversable and the removal of the bitumen has not interfered in a substantial way with the enjoyment by the applicants of the right of way over Easement E.  Although the applicants are also concerned about the possible washing away of the filling that was placed in the holes on the driveway, the evidence does not suggest that it is a real problem. 

[21] Submissions were made on behalf of the applicants that the removal of the bitumen surface on Easement E interfered with the storm water run off.  That has not affected the use of Easement E by the applicants for access to and from Lot 31. 

[22] I am not satisfied that the applicants have established a right to the injunction claimed in paragraph 2A of the amended originating application. 

[23] The applicants expressed concern during the hearing on 23 March 2005 about the respondents’ proposal to construct a concrete driveway on Easement E that would leave a gap of 1 metre between the edge of the concrete driveway closest to Easement D and the common boundary between Easements D and E.  That was not a matter on which the applicants sought to adduce evidence.  The respondents as the owners of Easement E have the right to construct a concrete driveway on their land, provided it does not substantially interfere with the access rights conferred on the applicants by Easement 356. 

Mailbox and wire fence

[24] It was unnecessary to deal with the issue of the mailbox at the hearing on 23 March 2005, as the applicants had removed the mailbox from where it had been placed in the middle of Easement D on the boundary with the footpath on the morning of 23 March 2005. 

[25] The male respondent complained about the fence that had been constructed on the far side of Easement D away from Easement E in paragraph 7.7 of his affidavit filed on 22 December 2004.  The fence was built approximately 3½ years ago by the applicants and the owner of the adjoining Lot 30 where a deep gully pit is situated in the vicinity of the boundary between Easement D and Lot 30.  The male applicant describes the relevant section of the fence as 10 to 12 metres in length and 1 metre in from the boundary of Easement D.  The male applicant states that the fence was constructed in the position where it presently stands to avoid the posts being in the gully.  The concern was that if the posts were in the gully and were submerged in water from time to time, they would rot more quickly.  The male respondent makes allegations against works carried out by the owner of Lot 30 in respect of that gully and the Council’s storm water drainage.  Those allegations are irrelevant to resolving the issue of the position of the fence. 

[26] From the photographs which show the relevant section of the fence, it is apparent that it is away from the driveway that straddles Easements D and E.  The gully is somewhere between 0.5 metre and 1 metre deep.  The fence assists in preventing persons who are walking on Easement D from falling into the gully.  I am not satisfied on the evidence that the relevant section of fence amounts to a substantial interference with the respondents’ enjoyment of the right of way over Easement D. 

[27] It follows that the respondents are not entitled to the mandatory injunctions sought in their application of 1 March 2005 nor the compensation which they claim as ancillary to those injunctions. 

Damages and compensation

[28] There is absolutely no basis whatsoever for the respondents to claim compensation relating to the filling of the holes which were dug at the request of the respondents in contravention of Easement 356. 

[29] There is no evidentiary support for the damages claimed by the respondents for the alleged inconvenience, delay and waste of materials relating to the construction of the concrete driveway on Easement E.  In any case, the respondents contributed to the delay by their conduct in causing the holes to be dug on 21 January 2005 which resulted in the interlocutory order made against them. 

Orders

[30] It follows that the following orders should be made:

1.The interlocutory injunction ordered by Muir J on 15 February 2005 is discharged.

2.The amended originating application is dismissed.

3.The application filed on 1 March 2005 is dismissed.

4.The application filed on 16 March 2005 is dismissed.

[31] The only matter which remains is the question of costs.  Muir J disposed of the question of costs in relation to the hearings on 22 December 2004 and 20 January 2005.  Muir J reserved the question of costs when making the interlocutory order on 15 February 2005.  As the respondents are self-represented, they are not entitled to an order for costs in their favour.  In any case, because of the outcome of the hearing on 23 March 2005, I consider that it is appropriate that there be no order for costs in respect of that hearing.  It follows from what occurred at the hearing on 2 March 2005 that it is also appropriate that there be no order for costs in respect of that day.  Because the hearing on 15 February 2005 was the result of the respondents’ conduct in contravention of Easement 356 that occurred on 21 January 2005, I am inclined to make an order for the costs of that hearing in favour of the applicants.  Before making any orders as to costs, I will hear submissions from the parties.